Quigley and Tilson

FAMILY COURT OF AUSTRALIA

QUIGLEY & TILSON

[2017] FamCA 61

FAMILY LAW – CHILDREN – PARENTING – where parties have shared care of five year old but she is about to commence school – both parents acknowledge shared care has to end because parties live in different country towns – where the distinguishing feature of their proposals lies in the father’s capacity to provide uninterrupted care whilst mother cannot offer the same because of her health situation.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Mr Quigley

RESPONDENT:

Ms Tilson

FILE NUMBER:

MLC

7901

2015

DATE DELIVERED:

10 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

30, 31 January, 1 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Devine

SOLICITOR FOR THE APPLICANT:

Heinz & Partners

COUNSEL FOR THE RESPONDENT:

Mr Moisidis

SOLICITOR FOR THE RESPONDENT:

BJT Lawyers

Orders

All extant parenting orders are discharged.
The father and the mother have equal shared parental responsibility for B (“the child”) born … 2011.
That the child live with the father as and from 5 pm on Sunday 5 February 2017.
From 5 pm on Sunday 5 February 2017 onwards, the child spend time with the mother as follows:
(a)During each alternate weekend commencing on Friday 10 February 2017 from 5.30 pm on the Friday until the commencement of school on the following Monday morning or the commencement of school on the next school day if the Monday is not a school day;
(b)For one half of each of the three mid-year school term holidays at times to be agreed and, failing agreement, for the first half during 2017 and for a similar period in each alternate year thereafter and for the second half during 2018 and for a similar period in each alternate year thereafter;
(c)For a period of 7 days on a rotating cyclical basis (subject to the interruption of any agreed Christmas and New Year periods) throughout the long summer school holidays provided always that the child be returned to the father one day prior to the resumption of the school year; and
(d)On each Wednesday during school terms from after school until 7 pm.
For the purposes of paragraphs 4 (a), and for the sake of clarity, the father deliver the child to the mother at C Town on the Friday evening and the mother return the child to her school in D Town on the following Monday morning.
For the purposes of paragraph 4 (b), the father deliver the child to the mother at C Town on the evening of the day that the child’s schooling concludes for the term and the mother return the child to the father in D Town on the evening prior to her return to school.
For the purposes of paragraph 4 (c), if the parties cannot agree on a handover place, it be at E Town.
For the purposes of paragraph 4 (d), the mother collect the child from school and return her to the father’s house.
For the purposes of paragraph 3, the mother deliver the child to the father at D Town at 5 pm.
That the father facilitate electronic communication between the child and the mother at 6 pm on the Saturday evening of the middle (non-contact) weekend.
That save as to the matters set out in paragraph 12 and any application for costs, all applications are dismissed.
The proceedings are otherwise adjourned to 10 am on 17 February 2017 to enable the parties to file minutes of orders to which they consent and in the event that those minutes are received by the Court by 4 pm on the day prior to the adjourned date, the parties are excused from further attendance. If no such minute is received and the parties do not attend on the return date, the whole of the proceedings shall otherwise stand dismissed.
That the reasons for judgment relating to the orders this day be published as soon as practicable.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Quigley & Tilson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7901 of 2015

Mr Quigley

Applicant

And

Ms Tilson

Respondent

REASONS FOR JUDGMENT

These are parenting proceedings between Mr Quigley (“the father”) and Ms Tilson (“the mother”) about the child who is five years of age.
The critical issue and about which there is urgency, arises from the fact that the child has had to start school and there is considerable distance between her parents’ homes. It is common ground that a sharing arrangement which has existed until last Friday, can no longer continue. For that reason, I made final orders immediately after the hearing concluded. These are the reasons for those orders.
With each of the parties conceding that a sharing arrangement of the child was no longer appropriate because of her commencing school, an examination of their respective proposals showed little difference in their respective positions. Whilst the determination of this parenting dispute must revolve around the best interests of the child, and that determination must be made according to law, the focus was which of the two parents is likely to sustain a stable lifestyle for the child so that her day to day needs can be met. Of the two parents, the father is likely to provide a more stable existence for the child than does the mother. There is no reason for me to think that the father’s way of life will change to any great degree but I am very uncertain about that of the mother and in particular, about her health.

Background

Since October 2013, the father has lived in D Town. Initially, the parties lived near F Town but about two years after they separated, the mother moved to C Town. That is about 60 kilometres from D Town where the father lives. To drive that time takes about 50 minutes. After the father moved to D Town, the child began a shared care arrangement with each parent for a few days at a time.
By the time of trial, the child was with the father from Thursday through to Tuesday and with the mother from Tuesday through to Thursday. Some of her precious childhood time was spent in two different kindergartens.
With the child about to start school, the shared arrangement had to stop and each parent sought that she live with them. There were compounding difficulties to be considered as well because the child has a sibling J who is aged 11 (but who is not the father’s child). The child has also enjoyed the relationship that the father has with his new partner and her two children. The father’s partner is pregnant.
The father proposed that the mother’s time be from Friday afternoon until Monday morning in a cycle of two weeks out of every three.
The father also sought orders for weekly periods during school holidays. The mother wanted a block of one half of the summer holidays once the child turned ten. The father opposed that saying he did not know when the child would be ready. He volunteered that his concern was the impact upon the child of being away from either parent for any particular period of time. There is sense in what he said.
There are also some other issues between the parties about special occasions and birthdays but they are not the focus of these reasons as the parties reached agreement.
The mother suggested that the child live with her and spend three out of four weekends from Friday through to Sunday with the father.
For the reasons that follow, the best interests of the child lie in her living with her father and spending Friday night through to Monday morning with her mother on alternate weekends. That is different from the various proposals but ultimately, the mother thought that there should be a base period and both parties agreed they could extend time if they thought it was needed by the child. Agreement was also reached about a midweek period of time so that the child could have an evening meal with the mother.

The major issues

The parties’ respective medical conditions

Each asserted that the child should live with them based upon the physical health of the other although that was not very clear from their affidavits. The case was initially (having regard also to their respective lawyers’ outlines) run along lines of criticising the stability of the other parent. Of the two cases, the father’s was more focussed on the concerns about the mother’s health.

The father’s health

In his affidavit, the father said that he enjoyed good health. Over a number of hours, he was cross-examined about prescription drugs that he had taken over the last few years. In finite detail, years were traversed where he attended his general practitioner. In 2012, he attended six times, 2013, 23 times, 2014, 17 times, 2015, 40 times and in 2016, 16 times. Those visits showed regular prescriptions of opiate drugs. He also had a prescription for hypertension.
The genesis of his history lies in the fact that until 2013 he suffered from diverticulitis. He conceded that he underwent surgery because of the painful effect of the illness. Post-surgery, he required regular pain relief and said that he had then been warned of the prospect of what he described as “scar tissue” difficulties. In 2014 and 2015, he regularly attended his general medical practitioner and was prescribed heavy painkillers culminating in a referral to a pain specialist and ultimately to a surgeon who operated in early September 2015 to attempt to redress the lesions. That procedural operation was not entirely successful and it left two problems. The first was that, not having completely resolved the aftermath of the diverticulitis, pain symptoms occurred from time to time but secondly the very nature of the surgery in the abdomen area created pain during a slow recovery. His pain relief prescriptions continued until early 2017 when he informed his doctor that he had ceased taking the medication. Dr G gave evidence that it is likely that there will be a need for pain medication in the future because the father is a very active man and the area of the surgery will face physical stress and consequent pain.
Counsel for the mother focussed on the opiate pain relief but I accept that Dr G has monitored the father’s condition carefully. There is no suggestion in the evidence of any addiction but even if there was, the focus of the Court’s inquiry lies with parental capacity. Counsel for the mother cross-examined the father not only about the extent of his pain but also the nature of the drugs that he was prescribed and his need for ongoing medical assistance. All of that missed the point. In re-examination, Dr G was asked whether this pain impacted upon his parenting abilities and he replied “No”.
There is no evidence to suggest that the father is addicted in any way to prescription medication nor that he is disabled such that he cannot care appropriately for the child. Fundamentally, there is no evidence from the mother to indicate that since the parties began the shared caring arrangement, the father has ever been disabled. Much time was wasted on this focus but it arose predominantly because the mother faces a similar problem.

The mother’s health

The mother suffers from ulcerative colitis. She has had that for a number of years. She too has been prescribed strong analgesic medication. The extent of that medication was the focus of the mother’s expert witness Dr H. He reviewed her entire medical file to indicate that on his assessment, the observations of the medical practitioners handling the mother’s problems were in most, but not all cases, correct, as were the prescriptions that followed. Those prescriptions, like the father’s, were of an opiate based nature. The reservation of Dr H is whether the cause of the mother’s problems is being addressed. That issue remains unresolved today.
The distinction between the mother and the father is that in her case, hospitalisation has occurred regularly, albeit on occasions only during day time, such that on some occasions, she has had to call upon the father to care for the child outside of what was otherwise the agreed and/or ordered arrangements.
Unlike the father’s evidence supported by Dr G, there is no indication from the mother’s evidence that her ulcerative colitis is under control to the point that some form of drug could be prescribed to ensure that no disabling occurred. She was still attending her doctor and obtaining powerful pain relief as late as January 2017.
The mother has also been prescribed other drugs which the father asserted related to depression. The mother thought it was a problem of anxiety but there is evidence from her former general practitioner, Dr I, and a psychologist, to the contrary.
In early 2016, the father told a psychologist appointed for the purposes of preparing a family report for the Federal Circuit Court that he thought the mother was abusing (or misusing) prescriptions drugs. In cross-examination, he attributed his belief then to the fact that the mother was reticent about telling him anything about her medical status. That led to a line of inquiry that enables me now to find that there is a risk in the future of the mother being so debilitated that she is disabled from caring for the child. I turn to the details below. On the other hand, there is no basis for me to be similarly concerned about the father. Unlike the mother, the father is able to ensure consistency of uninterrupted daily care for the child.
In her evidence, the mother said that her sister was not employed and available to care for the child should a problem arise. Until now, when a problem has arisen, the mother has contacted the father and he has taken care of the child. Even that has led to disputes.
I have doubts about the availability of the sister as a carer and/or supporter for the mother. The sister was not provided as a witness. Cross-examination of the mother showed that for about eight months of 2016, she purchased painkilling medication under her name which she said was for her sister. She maintained her sister requested her to do so because she was working and unable to get out to do so. Implausible as that may seem, it is also inconsistent with the mother’s evidence sworn 14 December 2016 [at paragraph 55] that her sister does not work. Even if that inconsistency arises from a timing issue, the last purchase of over-the-counter medication being on 6 December 2016, there is an additional concern that the mother says the sister’s need for the drugs arises because she too suffered from ulcerative colitis. Throughout these proceedings, the mother attributed the inadequacy of her paperwork to her lawyer yet one might have expected at least some reference to the sister’s health.

The simple background of the parties

The father is 39 years of age and works in management. The mother is 30 years of age and apparently desires to study but is otherwise working part time.
The father has a daughter aged 12½ from a previous relationship and with whom he spends time.
The mother has a child J who is aged 11½ years. J’s father has provided affidavit evidence relating to what happened in an incident in January 2016 to which I return below, but in my view, his evidence does little to assist the mother’s case.
The parties commenced their relationship in 2006 and the child was born in 2011. They separated in 2013.

October 2015

By October 2015, the child was in an unofficial shared caring arrangement with both of parents. Both claimed that the child “generally” was primarily cared for by them and that the other parent had a part time role. The father said that he had more occasions than the agreed informal structure because mother was ill from time to time.
In October 2015, the parties’ level of communication had broken down and there was a dispute as to what day the child was to be handed over by the mother to the father. The mother decided that she would not hand over the child until there were court orders because the father had not complied with their agreement as she saw it. At best, I find there was miscommunication. There is not sufficient evidence to enable me to find the father acted unilaterally in breaching any agreement unlike the mother, as is evident from what followed.
Through lawyers, the mother precipitated proceedings in the C Town Magistrates’ Court. At the same time that that occurred, she filed an application for an intervention order based upon a series of accusations which might generally be described as verbal abuse. When that verbal abuse was put to the father in cross-examination, he emphatically denied ever using abusive language. There is no reason for me to disbelieve him but more importantly, as I observed at the time, the onus of proof of such an accusation lies with the mother. She has not satisfied me. When asked why she took the intervention order steps she did, the mother pointed the metaphorical finger at her lawyer.
Both parties had lawyers acting for them at that time and after the proceedings were issued in the Magistrates’ Court, an arrangement was put in place for their sharing of the child. A mediation was arranged and I accept the father’s evidence that on the day of the mediation, he was unaware that an intervention order had been made against him on an ex parte basis. The mother’s position was that the mediator knew of the intervention order notwithstanding the father may not have. Her evidence was that she thought he had been informed. In my view that position is not only untenable but it is implausible because both parties had lawyers acting for them. To undertake a mediation in circumstances where an intervention had been made that day without the other party knowing about it, is not only improper but also quite dangerous. No evidence was called to support the mother’s assertion. Based on her evidence that she took out the ex parte intervention order on legal advice, it is odd that the same lawyer would have permitted the mediation in a parenting case to proceed with the respondent in blissful ignorance.
Despite that problem, the parties were able to reach agreement about the sharing of the child. Orders were then made on 22 October 2015 for an equal shared time arrangement. Each was aware of the distance between D Town and C Town where they were living. The proceedings were then transferred to the Federal Circuit Court.
When the mother’s application for the intervention order was next returnable before the Magistrates’ Court at C Town, she withdrew her complaint and the interim order that had been obtained on an ex parte basis was discharged.
Within weeks of those orders being made and prior to the matter coming on before the Federal Circuit Court, another dispute arose. This time, the father asserted that the mother had been abusive towards him and he had received a threat in an electronic message which he attributed to the mother. The Magistrates’ Court listed the father’s application on 2 December 2015 and on that day, the mother cross-applied. She told the C Town court that she regretted having withdrawn her application because of the abusive language that she had been subjected to from the father. On 2 December 2015 mutual orders were then made with a denial of any need for such. When asked why she cross-applied, she said that she had only done so because the father had applied. She confirmed in very clear terms that she had had no fear of the father. I find her action was tactical and inappropriate. Despite all of that, family violence is not an issue in these proceedings.

In October 2015, an order to which both consented, was made that each party be restrained from transporting the child in an unregistered or an unroadworthy motor vehicle. There did not seem to be any dispute that the mother had possession of a car on which the father had not renewed the registration. I find she knew it was unregistered but she chose to drive it. Unfortunately, she was detected by police and fined. When she next met the father, she was abusive towards him notwithstanding I am satisfied it was her own fault. There is no dispute that she was upset by the imposition of the fine or, more importantly, having been caught driving the car. There is no apparent dispute that this incident took place in the presence of the child because it was a handover time; it should not have occurred.

January 2016

On New Year’s Day 2016, the father was called by the mother to take the child. Both the father and J’s father (Mr K) whom I earlier mentioned, seemed to have arrived at the mother’s home at around the same time. The mother was acting if she was either affected by alcohol or a combination of alcohol and the drugs that she was then taking for her ulcerative colitis. Either way, she was unwell.
Mr K was of the view that she was not “that bad” but he took J to stay with him. He thought that the mother might have been drunk. The father spoke to Mr K away from the mother’s home but in the presence of J. In his affidavit, Mr K said that the father had questioned J about what her mother had been doing and he described J as being confused. The clear import from the affidavit was that the father’s behaviour was inappropriate towards J. Mr K was required for cross-examination and he confirmed that he did not intend that to be the case at all. The evidence of Mr K was otherwise of little assistance. Throughout the mother’s case, she maintained she consumed alcohol in moderation. If she was drunk, as Mr K thought, her drinking could not be described as moderate. If it was as a result of an adverse reaction to drugs, her responsibility must be questioned, if, as the records show, she had recently been given a new drug. To not inquire about the effects of the mixing of drugs and alcohol shows a lack of common sense.
Having regard to the matters to which I shall turn about the mother’s consumption of alcohol on the medical advice of Dr H, I am satisfied that she was most likely affected by alcohol that day and that her behaviour was irresponsible. The father was acting appropriately and protectively towards the child. There is no evidence that the child was affected adversely by any of the problems suffered by her mother nor any evidence that the child was distressed. That appears to have been consistent throughout this child’s last two years.

March 2016

The evidence of the father was that on 31 March 2016, he received a further call from the mother to “urgently” come and collect the child. Having regard to what he had experienced only weeks before on New Year’s Day, he said he drove quickly to the mother’s home where he saw her in the same sort of condition that he observed in January. He said that his partner went inside the mother’s home and collected the child. The child then went to stay with him. He retained the child until the lawyers worked out a compromise.
The mother’s version of this day was entirely different. She said that she had been notified that her university holidays had been altered and that required an alteration to the arrangement that she had made with the father about the child’s holidays and so she contacted him and he came and collected the child. She denied that the father’s partner entered the home. She denied that she was affected by drugs or alcohol or was like she had been in January. She denied that she had stumbled as observed by the father’s partner.
It will be evident that the versions of the parties are diametrically opposed. I find on the balance of probabilities that the father’s version is the correct one. It is implausible that the university would suddenly change as alleged. The affidavit evidence of the parties has been before the court for a long time. The mother has always known this to be a contentious factual issue. At no stage has the mother produced any corroborative evidence. In cross-examination, she said that the university announcement was an oral one to the class but even so, some written record could have been obtained.
The second reason for accepting the father’s version is that throughout cross-examination, the mother was unable to remember dates of a lot of things. Whilst she maintained that her memory was good and it was only dates that caused her difficulty, there is medical evidence to show that her memory was affected when hospitalised during January 2016. The evidence of the father was concise. He was not seriously challenged about anything he said. He too could not remember exactly what he was told by the mother about the reason for changing the arrangement but he was otherwise adamant about what he saw.
A third reason for accepting the father’s evidence is that he said that his partner went inside the home to collect the child whilst he spoke to the mother outside. It was the mother’s evidence that the partner had never been inside her home ever. The father’s partner was required for cross-examination. It was not suggested to her that she did not go inside the home to collect and comfort the child. She was challenged specifically about whether she saw the mother stumble. Her position about that remained unmoved. Having accepted the partner as a witness of truth, her evidence lends credence to the father’s version. For those reasons, on the balance of probabilities, I find the mother did contact the father on 31 March and request that he take the child but not for the reasons that she articulated.
In relation to the same date, Dr H observed (presumably having read the father’s affidavit) that there may have been an explanation for the mother’s demeanour in that a combination of alcohol and drugs would give the effect described by the father. Obviously, Dr H was only relying upon what he was told but again, having accepted the father’s evidence, it is plausible that the mother was affected by either her drugs or alcohol on that night.

The stability of the parents

In 2016 when the matter was before Judge Riethmuller on circuit in C Town, it was the mother’s view as expressed to this court, that the proceedings were adjourned because her lawyers were “not ready”. That is hard to understand. A family report had been prepared and affidavit material had been on the court file since the previous October when the interim orders were put in place. Why the case was not ready remained unanswered. Had the issues of the child’s future then been addressed, much angst may have been avoided.
Another example of her inadequate evidence relates to her health. Albeit not in any affidavit, and not led by her counsel in addition to her affidavit material, whilst being cross-examined, the mother volunteered that a specialist had recently ascertained the cause of her health difficulties. She said she had been allergic to a certain drug. The absence of any evidence from the mother is concerning but a subpoena had been issued to her general medical practitioner’s clinic (Exhibit F2) and the records tendered in evidence were said to be complete as at 19 January 2017. There is no evidence in that document to indicate that the solution (if that is what it was) proffered by the mother had been found. Indeed, as late as 18 January 2017, the mother was seeking Tramadol from her general practitioner. On 14 January 2017, her reason described for the contact with the doctor was “abdominal pain” and she was prescribed Endone which is a quick release powerful pain reliever. In addition, she was prescribed Valium. It is conceivable of course that her health solution still awaits the implementation of some course but if that is being contemplated, the court was not told.

The parties’ respective mental health states

The mother asserted that the father had a psychiatric and psychological problem. The parties were ultimately each examined by Associate Professor L who is a consultant psychiatrist. Notwithstanding counsel for the mother suggested to the father that he had pushed for the mother to be psychiatrically examined, the father’s evidence, which I accept was plausible, was that a Federal Circuit Court judge had taken the initiative before the proceedings were transferred to this court, and ordered that each party be so examined. Apart from the extraordinary cost of that exercise, nothing I have read or heard suggested that there was any basis to indicate that the parties suffered from a psychological or a psychiatric issue, other than on the mother’s own admission, she suffered from anxiety.
It was the mother who asserted that the father must have had a psychiatric or psychological problem because of his behaviour towards her in front of the child. Associate Professor L found there was no such problem. Professor L’s assessment of the father was contained in an affidavit filed on behalf of the father. No similar affidavit was filed on behalf of the mother in relation to Professor L’s assessment of her but it was agreed by both parties that his report about her should be tendered in evidence.
Professor L said in respect of the father that there was no evidence to suggest a diagnosable psychiatric condition or mental illness and to the extent that this exercise was begun on the basis of the mother’s assertion that the father was “controlling, abusive” and had denigrated her, Professor L found no evidence of a clinical disorder of personality nor any past history of disorder of that nature or of significant mood disturbance. Nothing according to Professor L suggested that the father’s mental health interfered with his parental ability and long term parental capacity. I too observed no behaviour in the father’s evidence such as to indicate controlling or abusive conduct. Indeed, I found the father calm, rational, thoughtful and responsive. I found the father to be a truthful witness.
Of the mother, Professor L said that nothing about her insight and judgment were impaired by any psychiatric cause. Indeed, her mental state examination was unremarkable. He found no persistent or current depressive disorder nor any diagnosable psychiatric condition.
Nothing Professor L said about the mother was the subject of any challenge. Importantly, none of the historical facts upon which he based his opinion, were disputed.
Professor L from his interview with the mother on 6 October 2016 said:
[31]She told me (about the controversial period of January 2016) that she was taking both analgesic medication and alcohol and she said that the alcohol did not mix with the tablets. She told me that it had adverse effects. She told me that “I wasn’t too good”.
Whilst that statement suggests the mother knew of the danger, she said that she was told by her gastroenterologist and another doctor that she could consume alcohol moderately. That flies in the fact of the evidence of her own expert witness Dr H who said she should not drink at all. In fairness, her medical records of May 2016 also show that she was “advised about limiting alcohol intake”.
Professor L went on to say at [37]
She told me that she has been feeling fine and has had no counselling. (My emphasis).
Later at [73] Professor L said the mother told her she sought counselling in the local community health service. The mother told the court that between September 2015 and January 2016 she had chosen a counsellor and obtained counselling but that ended because the counsellor said she was fine.
The mother’s solicitor had sought and obtained a report from a medical practitioner Dr I. That doctor wrote that he had diagnosed the mother with depression but the mother said that he told her that it was anxiety. Again, the doctor may have told her something that was not entirely descriptively accurate but it would seem unlikely.
The mother told Professor L at [24] that the father had told her that he was using the drug “Ice” and he had:
used amphetamines, speed for years. She told me he would use drugs in front of her.
The accuracy of the mother’s statement to Professor L was challenged by counsel for the father but she maintained what she said was true. The same allegation was also made by the mother to Dr M whose evidence is referred to later in these reasons. To him, she said that the father had been regularly using “Ice” and other drugs “when they were together”. In her affidavit filed 14 December 2016 at [29], the mother said the father drank alcohol during their relationship but made no reference to drug usage in that context. Indeed, she said this:
The applicant father has also disclosed to me that he has taken illicit drugs, including Ecstasy.
The mother went on to say that reference to this drug usage was to be found in the subpoenaed material. No such material was tendered into evidence.
It is conceivable that the father may have made such an admission to the mother during their relationship and indeed had used drugs in the past but it was never put to him in cross-examination and the issue of its relevance remains obscure. The lawyer who drafted the affidavit must have put the assertion on instructions but one wonders what the relevance of the point was if nothing further was produced and, more importantly, as the author of the document in both cases was the same, the inconsistency between the father using drugs with the mother and, telling her that he had previously used drugs, is self-evident.
As the father was not challenged about the issue and its relevance escapes me in the immediate parenting dispute, I can only presume it was led to denigrate the father. Again, the mother said she relied upon her lawyer but that could not have been the case with her visits to Dr M and Professor L. It says nothing about her own position of living with, and not objecting to, a man who was then her partner “regularly and at high levels” using serious drugs (Dr M [36]). The irony lay in the fact that the father was cross-examined about his denigration of the mother and he was accused of “mud” throwing. Again, time was wasted.
In her affidavit filed 29 April 2016, the mother asserted at [102] and at [105] the father suffered from “mental health issues”. Despite Professor L’s report to the contrary, no alteration to those affidavit paragraphs was made notwithstanding the mother acknowledged that Professor L had found the father had no psychiatric conditions. The mother seemed to challenge the historical basis for the opinion of Professor L because she said the father’s statements to the psychiatrist about his alcohol consumption and illegal drug usage were not correct. The difficulty is that neither of those issues was put to the father and certainly no evidence was led that might support such an allegation.
Professor L reported that the mother observed of the father:
[63]She said that as a parent, he loves [the child] and cares about the child. She said that he does not have boundaries with her as a parent, but has no real problem with that. She told me that she fears that she (sic) will brainwash [the child] against her and her family.
None of those allegations (to the extent that they could be supported by, or manifested in, facts) was put to the father. In cross-examination, the mother conceded that he was a good father.
Ultimately, although Professor L found that there was no psychiatric problem in relation to the mother, he said:
[93]In my opinion, there should be concern about the ongoing regular use of the narcotic opioid medication Endone. There is a risk of reliance or dependency on that prescribed medication. The mother has been prescribed over recent months that narcotic analgesic medication for pain relief, related to a bowel problem. Long term use of that medication is not good clinical practice and dependency will result in its long term use. As such, it is a potential interference in the mother’s parental ability.
The last observation of Professor L is significant for a number of reasons. The mother has volunteered that the cause of her problem has been found yet as late as two weeks before this hearing began, she was seeking the powerful drug that Professor L expressed concern about. No doubt, the doctor who prescribed the medication was satisfied that the pain relief was necessary because the mother’s pain was evident. But there is no indication that even if the cause of her problems has been isolated, there is any specific program to release her from the potential dependency that concerned Professor L.
If the dependency exists and continues, there is the problem of the mother’s continued use of alcohol even in the moderate form that she describes. In that respect, it is concerning that when asked about how much she could drink and what amount of alcohol was contained in what she was drinking, she was unable to assist. It is self-evident from the evidence of Dr H that the mixing of medication and alcohol is ill-advised.
Apart from Dr H, no other evidence was shown to the court to indicate that the mother had been told not to drink. The advice of Dr H had not been read by the mother until the middle of the court case.
I have little confidence that her lifestyle will change. That being so, the regular disabling of her because of her medical condition including hospitalisations even on a daytime basis is concerning.

The evidence of Dr H

As I have already mentioned, Dr H was the wife’s expert witness and no objection was taken to his evidence being filed. He is the Chief Medical Officer for the C Town Health Services and holds qualifications as a medical practitioner including the Degree of Master of Clinical Research. He examined the records of the mother and diagnosed her as suffering from mild ulcerative colitis and irritable bowel syndrome and found that these things had flared at times requiring hospital emergency department visits. He observed that urinalysis had shown the presence of opiates and benzodiazepines. Each of these would normally give rise to concern in a parenting case about both responsibility and capacity because of the illicit nature of their use but also the known impacts upon the parenting of children. In this case, Dr H examined the records of the various occasions the mother attended for treatment, her expressed symptoms and then the drugs prescribed. His view remained that the prescriptions were properly administered. He acknowledged the limitations contained in his report as to what gave rise to the events that caused the mother’s various hospital visits saying that those were matters for the court. I turn to those below.
Much of his focus lay in respect of the two incidents in 2016 of 1 January 2016 and 31 March 2016.
In respect of the January issue, Dr H noted that there was no dispute that the mother had consumed alcohol whilst prescribed (and was presumably using) Endone. An accusation was put to the father in cross-examination that he had no idea how much alcohol the mother had consumed but there is evidence before the court that on that evening, the mother’s former partner delivered six cans of alcohol to her at her request. How much of that she consumed is hard to say. The consumption of any specific quantity in this case is irrelevant because Dr H said that doctors usually recommend abstinence from alcohol because the combination may cause dizziness, drowsiness and sleepiness. None of those are conducive to responsive parenting. The mother did consume alcohol in the January occasion and ultimately it required her hospitalisation. That gave rise to the father being called upon to care for the child. The parties argued amongst themselves about the overt symptoms of the mother’s behaviour that night but in my view they are irrelevant. The only issue of concern was that the mother should not have been drinking alcohol at all while taking the prescription drugs. Dr H was of the view that the medication packet contained warnings.

Subsequent to March 2016, the mother has had medical interventions beyond general medical practitioner appointments and has required the father to care for the child.
Of the mother’s several presentations to hospital in 2016, Dr H said that they may have been due to either colitis, irritable bowel syndrome or a combination of both. His observation was that the symptoms manifested on those occasions required treatment which was provided. Dr H described the presentations as “multiple”. Importantly, he said that the mother’s symptoms could be reasonably concluded to be typically abdominal pain, vomiting and diarrhoea and she often had signs of dehydration, fast heart rate and a lot of pain. These symptoms required intervention which included intravenous fluids, analgesics such as morphine and Endone and medication for nausea. On each occasion, blood tests and scans were undertaken but they were not reliable to confirm or exclude the diagnosis of the inflammatory bowel disease. However, Dr H concluded that the presentations were consistent with a flare-up of the mother’s health problems.
In 2016, the mother attended the emergency department of the hospital on 29 January 2016 and 18 February 2016. These were said to be allergic reactions to something. She had a urinary tract infection in July and suspected kidney stone problems in May. In August 2016 she attended the emergency department with a headache that was so severe that she had a lumbar puncture and a CT scan as well as other investigations.
In summarising the records which Dr H examined, 2016 was a concerning year for the mother’s health. She had admissions or attendances at the emergency department of the hospital on the following dates:
3 January 2016;
29 January 2016;
18 February 2016;
28 February 2016;
3 March 2016;
22 March 2016;
23 March 2016;
6 April 2016;
8 April 2016;
17 May 2016;
29 May 2016;
23 July 2016; and
1 August 2016.
All of these must have been serious to warrant attention other than through her local general medical practitioner. Dr H described each of the attendances. Although his focus was on the nature of the illness and indeed the medication given to the mother, it is more her symptoms that are relevant in a parenting case. That is because in circumstances where she had, or in the future might have, the child in her care, I can infer that the child would have observed those sorts of symptoms and that is concerning. To the extent that the mother requested the father to take the child into his care, she must be commended but there is no evidence before me as to how the child responded to what she saw or the actions her parents took. The various dates shown above included medical descriptions of fever, chills, nausea, vomiting, abdominal pain, diarrhoea, puffy face, tingling arms, painful right arm, chest pain, significant stressors, and rashes. The inference open to me is that in circumstances where the child might be around, the mother would not be capable of caring for her properly.
The mother maintained that she had supportive family in the C Town area but she did not call upon them to give evidence. Whilst that is not fatal, the people who were noted as assisting her were also not called. A Mr N with whom she had had a relationship, came to the mother’s home to care for the child whilst she was driven to hospital. The mother volunteered that a paramedic on one occasion stayed to care for the child whilst the ambulance took her to hospital. Whenever the mother had called upon the father to attend, he quickly came despite being 55 or so minutes away. But what of incidents in the middle of the night? There is no evidence to indicate how the child handles her mother’s disability. It is concerning that the evidence of the mother suggested her sister Rachel could assist but that witness, who I was told was present at court for some of the hearing, was neither asked to prepare an affidavit or required to give oral evidence.
In addition to the evidence of Dr H, records of the mother’s general medical practitioner were also produced and she was cross-examined about them. Her attendances upon her general medical practitioner in 2016 were extensive. She was constantly prescribed medication. This was medication that could not be acquired over the counter. The mother seemed to suggest that because the medication was so powerful, she was required to come back on a regular basis for review but unfortunately, and certainly the subject of criticism by Dr H, many of the notes just simply say “abdominal pain”. Dr H expressed concern that there appeared to be no endeavour to find out the cause of the ongoing illness or how to end the cycle of attendances and the perpetual taking of medication.
In July 2016, there was a discussion between the mother and her medical practitioner about the attendance at a pain specialist but even there, Dr H was hesitant because as he said, pain management would not necessarily fix the problem. Dr H thought that it was good that all of the medication was now being prescribed by the one doctor. In his view, the mother will continue to require medical appointments and there is no immediate end in sight.
The medical records of the general practice indicate that a Dr I on one occasion declined to prescribe opioids. He was so concerned that he contacted the Department of Health and Human Services. The mother then spoke to the Department and they advised her to get another doctor. In August 2016, Dr O wrote that the mother came in seeking long-acting opioids but he noted with apparent concern that she had not followed up with the gastroenterology appointment in the hospital having been recently discharged from there. He also noted that she had not followed up with the pain specialist referral or completed the questionnaire of the hospital. It is concerning that it was the mother who was seeking a particular form of pain medication and that she clearly understood the distinction between short-acting opioids and long-acting opioids. Dr O noted that to have such a regime in place, a permit would be required. He noted that of the abdominal pains about which she was complaining, no cause had been found. Not much has changed and in circumstances where the child’s stability is the issue, I have no confidence that the history of 2016 will not be repeated because subsequent to Dr O’s attendance in August, the notes of the clinic continue to indicate abdominal pain and on a regular basis.
Just on those notes alone, one would have to be concerned about the number of times the mother has been attending her general medical practitioner complaining of abdominal pain not because of any question of medical treatment or indeed dependence upon drugs but rather that they occurred during mornings and on weekends when she had the child in her care. No evidence was led by the mother as to how the child reacted or who cared for her during those occasions. Some of the earlier notes of the clinic indicated that the mother’s back was also very sore and that she had a rash on her face. On Saturday 23 July 2016 Dr O noted that she was unable to tolerate oral feeds and had vomited with abdominal pain. No evidence was led by the mother as to where the child was or how she was cared for in those sorts of situations. As I earlier observed, she generally contacted the father if she was incapable of caring for the child but I remain unclear as to how often the child observed all of these events or reacted to them. The father had not known about many of these attendances on doctors and it is sad that this evidence had to arise from subpoenaed material. There was no co-operation about this information.
As late as the middle of January 2017, the mother was still seeking Endone because she was “having shakes in hands, sweating, agitation, hot flushes” and wanted to “try” another drug about which the doctor gave advice as to bleeding. Prescriptions were then given including for the drug that the mother wanted. Again, I wish to make clear that I am not criticising the treatment of the mother but rather the fact that I do not know what was happening to the child during these periods of time.
The mother was also cross-examined about a range of attendances at a pharmacist where she bought Panadeine Extra. This was not just the one pharmacy. Over a space of eight months in 2016, on a number of occasions she acquired “Panadeine Extra”. When challenged as to why she was acquiring that if she was getting a different form of prescribed medication from her doctor, she said that she was acquiring it for her sister. When asked why she continued to do that, she replied “she’s my sister”.
When asked why it suddenly stopped in December 2016, her reply was that she had become aware that the lawyer for the father had found out about it and she knew that he would use it against her. That was an odd response if indeed her truthfulness could be accepted that the drugs were all acquired for her sister.
These drugs were able to be acquired over the counter but it is unclear to me whether the purchase of drugs for someone else is a problem. What causes that concern is that amongst the pharmacy notes taken by the pharmacist were inquiries as to why the drug was needed. The mother told the pharmacist that it was for ulcerative colitis and she was advised that that was not the usual course of treatment for such an illness and that she needed to see her gastroenterologist. Concern was expressed by a pharmacist about a number of things but there was no suggestion to the pharmacy that the drugs were for her sister. I do not accept her evidence that she was simply acquiring the drugs for her sister. The mother was attending her doctor to request a prescription for powerful painkilling medication and the doctors had written that she was some days ahead of when she should have been able to obtain renewed prescriptions. All of that creates a sinister atmosphere suggesting that the mother was using the over the counter prescriptions to cover the period of time when her prescribed medication was insufficient.
My concern still is where the child was during those periods of time. I take into account that the child was being shared between the parties during that period of time but the mother led no evidence to indicate that the child was never with her when that medication was acquired. If the various records are added together, the mother was constantly involved with the local hospital, her medical clinic or the pharmacy.
I take into account that the father was content to have the child remain in the mother’s care on the shared care basis but to the extent that that was put by counsel for the mother to suggest that the father was not troubled, I accept he did not know about some of these matters until very late in these proceedings. He certainly would not have known that the mother was acquiring the drugs for her sister nor would he have known that her trips to the medical clinic to get powerful painkilling medication were continuing. The absence of the evidence by the mother about the impact upon the child is puzzling.
Dr H made it clear that the various episodes of pain arising from ulcerative colitis cause “discomfort”. He said that in his view, there were a few bad days but then the analgesia enabled the problem to settle.
Dr H had the benefit of the views of a number of other doctors. Dr P a gastroenterologist at the C Town Hospital wrote that it was difficult to predict whether further hospitalisation would be necessary because the functional component of the mother’s physical make-up could flare at any time according to “multiple factors including the social and physical stressors” she faced. He noted that once the mother obtained pain control, she was very keen to get discharged from hospital as soon as possible. As for her capability as a parent, he could not see why she could not function as a parent “when the functional component is not active”. The inference I have drawn from that statement is that when the problem flares, the mother is disabled in some way.
On 23 July 2016 in one of the admissions through the emergency department of the C Town Health Services, the medical consultant wrote:
It is to my concern that she has been in and out of different hospital (sic) with inconclusive investigations regarding her abdominal pain, and poor adherence to treatment. It might be useful to get a referral to a chronic pain specialist should you feel it appropriate as well as an allergy (sic) tests as she seems to be allergic to multiple antibiotics and nausea treatments.
In October 2016, the mother attended the Q Hospital Immunology and Allergy Section where the registrar thought that she may have symptoms of “chronic intermittent urticaria with angioedema precipitated by codeine”.
Dr H was asked about the urticaria and he said that there were often concerns about its causes. Some people were treated with antihistamines but then they became agitated. He seemed to think that some more serious investigations needed to be undertaken. Importantly, as was evident from the Q Hospital report, Dr H said that the response there described could have come from the Endone which the mother was prescribed. It is concerning that the report from the Q Hospital was prepared in October 2016 yet as late as 14 January 2017, the general medical practitioner was still prescribing Endone but without any apparent long term plan let alone solution.
I have already stressed that this is not a case involving an inquiry into the treatment of the mother but rather what is best for the child. All of the evidence of the medical experts indicates that the problem that the mother has is serious, that it can flare quickly and that it is debilitating requiring heavy painkillers. The symptoms I have described are alarming and by inference, the child is either not cared for or observes her mother in significant pain. I accept that that can happen even on weekends when she would be in her mother’s care but those are limited by the number of weekends that the mother has the child. Similarly, in respect of the Wednesday nights that I have now ordered, the mother can forewarn the father that she is unable to attend because she is ill.
I conclude that the mother is struggling with an illness that by its very nature, comes on quickly and has debilitating effects. Her capacity as a parent being the major issue in this case, I could not find other than that she cannot guarantee consistency of care for the child. That being so, notwithstanding her best intentions of calling upon the assistance of the father, the distance between the parties creates an obvious problem. Even if it is only 50 minutes drive, the child is about to start school for the first time and does not need disruption.
Against the backdrop of that evidence, I have the evidence of the father and his partner all of which indicates a very stable existence and one in which the child is comfortable and settled.

The evidence of Ms R

Ms R is the father’s new partner and she is in the early stages of a pregnancy. She has two children and is self-employed. She works from home.
The only reason that Ms R was called to give evidence was that counsel for the mother wanted to question her about the January 2016 incident including as to what she saw and heard. She maintained that she saw the mother stumble and heard her say a variety of undisputed things. I found her an impressive witness.

The father’s home environment

Very little attention was paid to the mundane things such as the father’s accommodation in D Town, the facilities in that town and the detail of the school the child will attend. The school is across the road. The father said that there were hospital and emergency services in D Town. The house that he is currently renting has six bedrooms. The child well knows that environment. The child well knows the family constellation. The evidence of the father which I accept, is that he has the capacity to provide for the needs of the child. This evidence was not controversial

The family report of Dr M

A family report was ordered by the Federal Circuit Court and the parties saw psychologist Dr M in February 2016. Much cross-examination took place about words used in that report and in particular, whether the father was being critical of the mother and indeed, putting her down.
Dr M readily conceded that he had not seen anyone for a year and, although the child was very young, he noticed her attachment to both parents. In his view, the crucial question for the court was how and by whom, the child was to be provided with love, care and availability by the respective parents. I find that the father is able to provide that care much more securely and consistently than can the mother. There is no question that the mother loves, and wants to be available for, the child. However, in terms of consistency which in my view the child needs, the father can provide that with more certainty. Dr M thought there was no indication of any transition problems during the period of time that he had observed the child and he saw no reason why that would be a problem now. He offered, and the parties seem to have accepted, he will help with the explanation to the child about what her life in the future is going to be like.

The legal issues

The parties’ submissions

The mother’s position was that the court should make an order for equal shared parental responsibility. That is not disputed by the father.
The mother sought an order that the child live with her and that three out of four weekends be spent with the father. The father’s position was that the child should live with him and that time be two weekends out of three. I have already indicated that in my view, the alternate weekend basis is better for the child to give her a chance to settle but on the basis also that there is Wednesday night contact and Facetime contact each middle weekend. To the extent that the parties agree that the child needs more time, they have agreed they will work that out amongst themselves.
Both counsel submitted that there was no need for the court to consider the rebuttal of the presumption in s 61DA of the Act and in particular, as I have already said, that family violence findings were not required. Both agree that s 65DAA requirements in relation to equal time orders were not appropriate because of the distance involved and because it was impracticable.
The court must consider significant and substantial time as defined by Part VII of the Act. For the reasons that I have outlined about the mother’s capability and the geographic distance involved, it is not practicable nor is it in the child’s best interests because of the distance involved, to try and tailor such an order. However, the orders I have made do provide for the mother to attend school to collect the child on a Wednesday night and deliver her on a Monday morning so, in any sense of the definition, the mother can participate in the daily activities associated with the child’s school. The parties have also agreed on arrangements for special occasions. In my view, notwithstanding a reservation about the impracticability because of the distance involved, the orders do provide for the child to spend significant and substantial time with the mother.
Counsel for the father described the mother as evasive. I reject that on the basis that whilst her answers were generally vague, that related mostly to specific dates and events. Her attendances on medical practitioners and pharmacists have been so numerous in 2016, that I am not at all surprised that she is incapable of remembering them all. Many of the circumstances described by her medical reports were embarrassing for her and I can well understand why she would not want to have those details displayed. I readily accept that the mother was not a good historian but that arose because of the paucity of some of her evidence. As I commented during the hearing, clients of lawyers are very much beholden to their lawyers’ advice. The mother consistently explained the absence or inconsistency of evidence by the fact that she had followed advice. I found the evidence sparse and at times unhelpful. I cannot blame the mother entirely for that.

Counsel for the father also described the mother’s evidence as “inherently unbelievable” in relation to the drug allegations against the father, the incident on 31 March and her reasoning behind the over the counter medication in 2016. All of the determinations of facts are made on the application of the principles of s 140 of the Evidence Act 1995 (Cth). That provision requires the court to determine civil proceedings on the balance of probabilities. That said, serious allegations attract a cautionary approach where the consequences of such findings have a serious consequence. That has occurred here and I have applied the principles in s 140(2) of the Evidence Act. In my view, because the onus of proof in relation to the drug abuse allegations against the father falls to the mother, I am satisfied that she has not established what she asserts. The distinction between the language used to the experts as against that crafted by her lawyer is telling. Her accusation that she could “prove” what she asserted is also significant where she did not do so. That is particularly so where the evidence was said to be in material produced under subpoena. It is disconcerting that after receipt of the relevant reports of the experts, the affidavit was drawn without consideration of the importance of that evidence or the fact that the assertion could apparently be corroborated.
Counsel for the mother submitted that the medical conditions of the parties were “line ball”. He observed that the point of differentiation between them was that the mother might have to go to hospital but that the court should not give that problem much weight. That was because, he submitted, hospital visits would not cause a great deal of instability in the child’s life. For example, he said, there was no evidence that the mother was “bedridden”. He acknowledged that there was a flare-up possibility. I reject the submission that the health issue is not serious as it minimises the quantity of attendances on doctors by the mother but also fails to deal with the question of what happened to the child where the evidence of the doctors about the mother’s symptoms was so graphic.
Throughout his case, counsel for the mother had observed that the father had taken opiates (properly prescribed) but I cannot leave that subject without remarking that the use of that medication was not the issue but rather, its impact. There is no evidence that the father has been disabled or that his pain is so debilitating that he has been unable to care for the child. It is particularly noticeable in this case that the mother’s affidavit of evidence asserted that the father had pain problems and had used prescribed medication yet no attention was given to the consequences for the child bearing in mind that she lived with the father a part of every week throughout 2016. Again, the paucity of any probative evidence makes the assertion not only doubtful but in terms of responsibility, questionable.
Counsel for the mother also submitted that the court should be cautious about the evidence of Dr H because he had not “examined” the mother. That said, Dr H was the mother’s own witness. Counsel submitted that whilst Dr H had concerns, the court should be more comforted by the fact that the mother’s general medical practitioner had consistent attendances upon the mother and knew her well. Bearing in mind the criticism by Dr H of the mother’s general medical practitioner for the inadequate recording of facts and what I perceive to be a concern about the apparent lack of attention to the mother’s ultimate problem, I prefer the evidence of Dr H.
Counsel for the mother conceded that an inference was open for the court to find that the mother needed medication because of her pain. That concession must mean that the child was, on various occasions, in the care of her mother who was having difficulties that required her various attendances at hospitals, doctors and pharmacies. Counsel submitted that there was no evidence that the father thought that the child was distressed but I find that that may also be because the child has become quite accustomed to what has been going on in her life. No-one addressed the issue of how the child was managing these issues when, in the Federal Circuit Court in early 2016, a family report was requested. It was clearly too early to know how the litigation would unfold and indeed as Dr M, the family report writer noted, his views had a limited value.
Counsel for the mother also submitted that the mother’s allegations against the father in relation to the Ice use, should not have been there. That says nothing about the mother’s firm belief that the allegation is true. Unfortunately, because of the way the evidence was prepared, the allegation was not supported by any corroborative material.
Counsel for the mother also submitted that even if the court accepted there was an incident at the end of March 2016 as described by the father, no such incident had since occurred. There may be other explanations for that. For example, the hospitalizations since March 2016 have been less dramatic but none of that addressed the fact that the mother’s need for serious pain relief continued. It may be that because of these proceedings and what happened in March, the mother is hesitant to call upon the father. The medical evidence shows the mother is very eager to leave hospital when she has been forced to attend there. As such, I draw little comfort from the submission that things have improved.
Section 60CA of the Act requires the court when deciding whether to make a particular parenting order, to regard the best interests of the child as the paramount consideration. Best interests are then determined by reference to the matters set out in s 60CC of the Act.
By their cases, both parties concede that the child benefits from having a meaningful relationship with both parents and that there is no need for the court to be concerned about protecting her from physical or psychological harm arising from abuse, neglect or family violence.
It was common ground that in relation to s 60CC(3) of the Act, the child is too young to not only understand what is happening but to have a view about where she should live. That said, the mother’s evidence was that in the last two weeks or so, the child has expressed concern that she is going to be living with her father. The mother attributes that concern to statements made by the father. No such assertion was made in the primary evidence of the mother notwithstanding leave was given to lead oral evidence beyond the affidavit material filed in December, and nothing was put to the father to suggest it was being caused by him. The mother conceded that prior to that period of concern, there was no similar problem in the child transitioning easily between the families.
The court is obliged to consider not just the relationships that the child has with her respective parents but also with other persons. Section 60CC(3)(b) does not restrict or define those other persons. Clearly, the most significant people in the child’s life, apart from her parents, are J her sibling but also the children of Ms R with whom she has been associated for most of her five years of life. The child is too young to understand the distinction between siblings and step-siblings but the evidence of Ms R indicates that the child has easily settled into her household and is very much loved and accepted by all.
In relation to J, I have no doubt that she is close to her sister but there is no evidence of an expert nature as to what impact there would be on the child in not having J around on a full-time basis. It must be remembered that Mr K (J’s father) has alternate weekends with J and sees her two to three times per week. J is 11 years of age and also attending school. Albeit that Mr K exercises some discretion in how often he sees J, there is no suggestion that he took the child with him when he had J. I have no evidence about how much time the child actually spends with J during the week. There was no evidence from the parties to indicate that the absence of J in the child’s life would be detrimental to the child. Indeed, both parties agree (save for what I have earlier mentioned about the last few weeks), the transitions have always been fine.
It was submitted by counsel for the mother that the court does not know how the whole change for the child will proceed. I accept that knowing is different from predicting but all of the evidence points to the fact that the child will cope quite well. She coped quite well with a three:four day regime and she coped well with a school holiday seven:seven day regime. In a new environment of school, she will be with other children presumably also new to that environment. She will also have a teacher who will be responsible for watching to see whether she has problems. It was not suggested by the mother that the proposed school was inadequate, deficient or inappropriate for the child.
I am also greatly comforted by the evidence of Ms R who is an experienced parent. No suggestion was put to her that anyone including welfare authorities or education authorities has had concerns about her standard of care of either the child or her step-siblings. No suggestion was put to Ms R that the child had problems with her children. It is inconceivable that the child would not have said something to the mother if it were otherwise. No criticisms were raised of Ms R by the mother. I do not consider therefore that the impact on the child of the absence of her mother under the new regime or her absence from J will have deleterious effects.
There is also no suggestion that the implementation of the orders now made creates both a practical geographic difficulty but also expense. The parties have been sharing the travelling. The maternal grandmother lives nearby to where the father resides and the mother says she can attend that house for the child to have an evening meal on the Wednesday night. Additionally, the maternal grandmother apparently has a child of similar age to the child. No suggestion was made by the father that such an arrangement was inappropriate for the child. Indeed it was suggested by the father. The mother saw no problems about the fact that she could spend time with the maternal grandmother.
Thus, the only two issues of concern arise out of the question of parental capacity (s 60CC(3)(f)(i)) and parental responsibility (ss 60CC(3)(i)). Each of those needs some consideration in this case.
Parental capacity relates to the provision of the needs of a child including emotional and intellectual needs. It is a very wide provision. Each of the parents has in different ways been able to provide for the physical needs of the child. She has been described as a happy and easy going child. Each of the parents can provide her with the necessary tools for learning. Here, the provision of those needs in the father’s household is unrestricted. A similar finding could not be made in respect of the mother’s household. There is a high percentage of time where the mother is involved with her own medical problems. There have been clear and unequivocal consequential changes of routine for the child when the mother became ill in 2016. The geographical distance once the child has started school, is more of a problem than it had been in 2016 when she could easily be removed from kindergarten. Thus, the distinction between the parties’ capacity to provide for the needs for the child favours the father because he does not have the problems associated with the mother’s illness.
Section 60CC(3)(i) focusses on the attitude to the child and to the responsibilities of parenthood. One needs to be careful here of course that this particular provision is not referring to civic responsibilities. As such, it is not a provision that relates to any concern that the court may have about the mother’s provision of painkilling medication for her sister. In my view that comes under s 60CC(3)(m).
Both parents want the best for the child. That being the case, their attitude towards the child is indistinguishable. Their responsibilities as parents can be seen in many facets of the ways they have brought this child up to date. They have shared her care. The father has worked and altered his work life to ensure that he has been around for the child over recent years. The mother has regulated her hours of employment around the child’s needs. Whenever the mother has been ill requiring hospitalisation, she has contacted the father and to his credit, he too, has jumped to the call. All of those matters indicate that the parents are responsible as parents.
Section 60CC(3)(m) leaves open to the court to consider any other fact or circumstance that the court thinks is relevant. I have significant reservations about what the mother was doing about her assertion that the painkillers were for her sister. I have concerns about her allegations relating to Ice against the father. In my view those are not matters that would justify a determination to remove a child from a parent. In respect of the painkillers, Dr H was not troubled about the quantity of the drugs. In respect of the Ice allegations, I consider it was badly handled by whoever settled the mother’s affidavit. The dilemma with the former issue is the sinister nature of what the mother was doing whilst proceedings were pending which gives rise to the question of whether she would contact the father in the future to assist if she could not care for the child. In relation to the latter issue, I do not know whether the evidence about drug use by the father has any impact anyway because there is no such current concern.
What distinguishes the parents in this case and justifies the orders I have made is the fact that the mother is afflicted by ulcerated colitis and there is little comfort for the court that a long term solution is being obtained. The absence of that solution means the continuation of dependence upon the medical profession for pain relief and by inference, that the child is being dragged along in the flow. In my view, that is an indication of an unstable home life. It is exacerbated by the fact that the mother in evidence in the trial took the view that consumption of alcohol in moderation was fine in circumstances where her own expert (albeit she seemed not to have read it) cautioned otherwise. The continued consumption of alcohol must mean that the court can presume that there is real risk that problems will arise again for her in the future and that the child will either witness them or be caught in that flow. In my view, that distinguishing feature justifies the father having the primary responsibility for the care of the child. However, it must not be forgotten that the major reason why that decision is necessary is because of where the parties live and the need for the child to be in one school. Thus, of the two parents, the father’s proposal provides the greater stability for the child and accordingly the orders should be made in his favour.
Finally, s 60CC(3)(l) requires the court to contemplate orders that will end proceedings or at least lead to the lack of proceeding in the future. That particular provision in this case is necessary. The parties did not at any stage suggest some other form of sharing arrangement or even interim orders. Unfortunately, these proceedings have been destructive of their trust and relationship as well as expensive because of the travel and accommodation costs involved in coming to court in Melbourne. These are country people and therefore, court proceedings have not only been unpleasant but disruptive to their lives. Based on the evidence of the mother alone as to what has happened in the last few weeks, the child is confused about which school she will attend and as a consequence, what time she will spend with each parent. In fairness to the child, all of that needs to stop but so too does the destructive nature of the court proceedings in relation to the parents. That alone is a basis to make an order that brings all of these proceedings to an end permanently.
I am satisfied that the orders pronounced at the conclusion of the trial and set out at the start of these reasons are in the best interests of the child.

I certify that the preceding One Hundred and Twenty Six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 February 2017.

Associate:

Date: 10 February 2017

[2017] FamCA 61

10 February 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness